LGBTI workplace equality: COLLECTIVE BARGAINING GUIDELINES

As part of the project “Alliance for LGBTI Workplace Equality”, a working group consisting of representatives of unions and civil society organizations discussed the possibilities and ways in which collective agreements can be used to protect and improve the rights and interests of LGBTI workers. The result are the following guidelines and the draft collective agreement.

These guidelines and the draft collective agreement are an attempt, regardless of the current practice of collective bargaining in Croatia, to propose realistic provisions that will be beneficial not only to LGBTI workers, but to all other vulnerable groups and workers in general. Another goal was encouraging union actors to take into consideration the specific interests of LGBTI workers in collective bargaining.

As for the LGBTI community in a broader sense, the intention was to familiarize its members with the form of the collective agreement and to propose several courses of action in regard to the specific practice of collective bargaining, as well as the legislative framework in the field of labour law and protection against harassment and discrimination. These guidelines are not exhaustive, but represent the first step and call for modification and improvement.

Below is the list of guidelines created by the working group:

Submit the collective agreement and all relevant documents to every worker. Workers are often unaware of the content of the collective agreement or other documents which define their rights.

Workers employed by an employer who employs at least twenty workers, with the exception of workers employed in state administration, have the right to elect a workers’ council which can participate in decision-making in relation to their economic and social rights (under the conditions prescribed by the Labour Act and the collective agreement). The working group recommends that the collective agreement, whenever possible, include provisions allowing the employer to make a decision concerning worker’s labour and social rights only with prior consent from the workers’ council or at least after consultation. This way the level of workers’ participation in decision-making is increased.

The working group recommends that collective agreements include provisions from different acts (Anti-discrimination Act, Gender Equality Act, Labour Act, Occupational Health and Safety Act, etc.). The purpose of this redundancy is primarily to ensure a greater chance for workers and responsible persons to come into contact with the collective agreement in force with that employer and become familiar with the definitions, rights and obligations arising from a range of laws, rather than reading the laws directly. Thereby the function of informing the workers and responsible persons is achieved in order to raise awareness of specific rights, obligations and topics. The purpose of the collective agreement is thus to be, along with legislation, a source of rights, but also an overview and repository of important sections from a range of laws that are relevant for a particular area or practice that we wish to regulate. Another purpose of such iteration of provisions is to ensure that in case of legislative changes that are detrimental to workers’ rights, workers can maintain the same, more favourable level of rights, at least until the expiry of the collective agreement. Specifically, if a right arising from an employment relationship is regulated differently by a labour contract, rules of operation, agreement between the workers’ council and employer, collective agreement or law, the most favourable right of the worker is applied, unless otherwise determined by law.

The working group recommends that in negotiating specific collective agreements practices that can be considered harassment be listed (an example can be found in Art. 12 of the collective agreement). Such descriptive enumeration can be based on specific experiences that have been documented within the workforce and thus more clearly identify harmful or undesirable practices.

The working group recommends defining a minimum amount to be paid by the employer to the employee should a final judgement determine a violation of dignity by harassment, sexual harassment, or discrimination (Art. 16, ¶ 8 in the collective agreement).

The working group recommends that a collective agreement stipulate the employer shall appoint a trustee for the protection of workers’ dignity with the consent of the workers’ council or union representatives. According to Art. 30 of the Labour Act (Official Gazette 93/14), an employer employing more than 20 workers shall appoint a person who would, in addition to him, be authorised to receive and deal with complaints related to the protection of workers’ dignity. In practice, this person rarely enjoys the workers’ trust, which is why it is advisable that workers participate in the appointment through the workers’ council or union representatives.

The working group recommends that the collective agreement prescribes the procedure for filing complaints to the trustee for the protection of workers’ dignity as well as the procedure of resolving such complaints.

The working group recommends that it be stipulated that in addition to the protection of workers from harassment or sexual harassment, the trustee for the protection of workers’ dignity shall also be competent for protection from discrimination.

The working group recommends that when negotiating provisions on occupational health and safety attention be paid to preventing and eliminating stress at work.

The working group recommends that the collective agreement include provisions that define:

that persons who are in a marital or extramarital union pursuant to the provisions of the Family Act or persons who are in a registered or informal life partnership pursuant to the provisions of the Same-sex Life Partnership Act are considered to be spouses;

that the term marriage also applies to the conclusion of a life partnership pursuant to the provisions of the Same-sex Life Partnership Act;

that persons who are in a marital or extramarital union pursuant to the provisions of the Family Act or persons who are in a registered or informal life partnership pursuant to the provisions of the Same-sex Life Partnership Act are considered to be close family members. In practice, the collective agreement often relates certain rights to the marital or family status of the worker: e.g. when the collective agreement provides for paid leave and/or financial support to which the worker is entitled in case of marriage, illness or death of a family member. These provisions clearly stipulate that in all such cases these rights shall also apply to persons in a same-sex relationship.

The existence of a workers’ council increases the participation of workers in the decision-making, which increases the possibility of action in terms of protecting and improving the interests of LGBTI workers. The working group recommends, if there is no workers’ council or if pursuant to the Labour Act there are no conditions for establishing a workers’ council, that all the rights and obligations of the workers’ council be assumed by union representatives under the conditions prescribed by the Labour Act. The aim of this provision is to ensure the participation of workers even with those employers where the Labour Act does not provide for the establishment of a workers’ council. In this regard, it is necessary to prescribe that all provisions referring to the workers’ council shall also apply, mutatis mutandis, to union representatives. Furthermore, it is desirable to define the work conditions when multiple unions, i.e. union representatives are operating with the employer. The working group proposes that, if there are multiple union representatives who had assumed the rights and authority of the workers’ council, all decisions from the workers’ council domain be adopted by majority vote.

The working group believes the existence and operation of unions increases the possibility of protecting and improving LGBTI workers’ rights. For this purpose it would be beneficial to define the work of the union representative, the use of bulletin boards and other communication channels with the employer, the protection of the union representative from contract termination and being put in a less favourable position, work absence with salary remuneration for the purpose of attending union meetings, seminars, training, congresses, conferences, etc.

The working group believes that, for the purpose of raising awareness of LGBTI workers’ issues, it is necessary to organize appropriate training and workshops for all interested workers during working hours at the employers’ expense.

Using the existing collective agreements from several employers, the working group has composed a draft collective agreement containing the previously mentioned elements. The idea is that interested actors such as unionists, employers and LGBTI activists can use this draft in collective bargaining and/or educating the interested public about the possibilities of protecting and improving the rights of LGBTI workers through collective agreements. The guidelines and draft agreement can be used freely, and we hope it will contribute to further protection and achieving the equality of LGBTI persons in the workplace.